On January 11, 2022, the Israeli Supreme Court, in an expanded panel of nine justices, prescribed a set of rules concerning procedures and judicial discretion on the granting of search warrants of computers and cellular devices as part of an investigation.
This is an important and necessary framework. Until now, despite the multitude of police applications for such search warrants, no set of legislated rules regulated this issue. The last amendment to the relevant section of law dates to 2005 before smartphones entered our lives.
Inter alia, the various courts have acted until now without any procedures for deliberating these applications, without clear rules delineating the judicial discretion when granting such search warrants, and without rules about how to object to a decision on these applications.
The Supreme Court rectified this deficiency, which resulted in ambiguity and a lack of uniformity in court rulings. It prescribed binding rules that strike a balance between maintaining investigative effectiveness and preventing obstruction of justice and the potential for privacy violations during these searches. We note such potential is infinitely higher here than during “traditional” searches of a person’s home and belongings.
Where Was There No Real Innovation?
As a rule, Israeli courts are to hold hearings of applications to grant search warrants of computers and cellular devices in the presence of the investigative authority only. Courts will also issue directives to the investigative authority and other courts to minimize privacy infringement.
The Supreme Court ruled to hold the hearing of an application to grant a search warrant of a computer or a cellular device ex parte (in the presence of the investigative authority). This will be the rule except in exceptional and unique instances, when the presence of another party is necessary to reach a decision on the application. (Examples of such instances include when the application to search the computer is for a professional who enjoys privilege by law, when partial or inaccurate information was presented to the court, or when some defect tainted the investigative authority’s conduct.)
Where Was There Innovation?
The Supreme Court ruled that, due to the unique characteristics of searches of computers and cellular devices, Courts and Investigative Authorities must take additional measures to ensure the harm to an individual’s rights (resulting from holding the hearing ex parte), does not exceed only what is necessary.
The Supreme Court ruled that applications for search warrants must be as detailed, informative, and delineated as possible. They also must include particular details. This constitutes an important innovation since the applications currently submitted by the police are extremely laconic and, as a result, very broad in scope. If the application does not fulfill these criteria, the Supreme Court ruled the court should consider rejecting the application without deliberating it on its merits, in order to allow the authorities to reapply with a corrected version.
The Supreme Court issued directives to courts deliberating search warrant applications. Inter alia, the new ruling prescribes that courts have a duty to ascertain whether the application is sufficiently delineated and limits the infringement of privacy to the extent possible. They should also consider the very justification for issuing the search warrant. Accordingly, the Supreme Court defined various considerations courts may take into account when deliberating an application. (These do not constitute a closed list.) Considerations include the gravity of the offense in respect of which the warrant is being requested and the magnitude of the harm …….
Source: https://www.jdsupra.com/legalnews/right-to-privacy-and-computers-and-4513067/